A mother can sue a doctor for her son’s medical expenses arising from the doctor’s alleged negligence, even though the son has not filed his own suit against the doctor, a Norfolk Circuit Court has ruled.
The defendant pediatrician said a Virginia statute, Virginia Code § 8.01-36(A), barred the mother’s suit for medical expenses and loss of services because there was no personal injury action pending on behalf of the son. The defendants also said the father, who potentially had a separate claim for expenses, had to be joined in the action as well.
Not so, said the circuit court. A parent has a separate common law right to sue for a child’s medical expenses, and the Virginia General Assembly has not abrogated that right, said Norfolk Circuit Judge Mary Jane Hall. The mother could proceed alone, without joining either the child or his father.
A parent may file a separate action to cover medical expenses while a child’s treatment is ongoing. A child’s medical situation may still be developing, according to Virginia Beach lawyer Stephen Swain, who represented the mother.
“We wanted to get the best evidence to present about the child’s lifelong medical expenses,” Swain said. If the court had adopted the defendants’ position, the mother’s cause of action “would have been completely obliterated,” he said.
Plaintiff Martha Pancho alleged that the defendants, Dr. Robert A. Johnson and his pediatric practice, failed to take appropriate action to treat her son for elevated bilirubin levels during an appointment on May 23, 2008. She alleged her son suffered severe physical and mental injuries.
Section (A) of Code § 8.01-36 says that where an infant plaintiff has a personal injury suit pending against tortfeasors, a parent or guardian who is entitled to recover medical expenses may sue the tortfeasors for such expenses “either in the action filed in behalf of the infant or in a separate action.”
Claims by parents frequently are bundled with an infant plaintiff’s claim for injuries, just as a matter of efficiency – “one filing fee, one service of process, one set of discovery” requests, said Virginia Beach lawyer Rodney S. Dillman, who represented the defendants.
If the parent’s claim is made by separate action, “both cases shall be tried together at the same time as parts of the same transaction,” the statute says. The defendants read Section (A) as a prohibition against a separate suit by the mother.
The judge disagreed, saying that under Virginia law, a wrongful injury to an infant “creates two rights of action: one on behalf of the infant to recover for personal injury, and one on the part of the parent” for loss of the infant’s services and necessary expenses incurred to treat the infant.
The mother’s right of recovery is grounded in the common law, and only clear authority that the General Assembly intended to change the common law would allow the court to accept the defendants’ interpretation, Hall reasoned.
“The Court has not located any authority indicating that a parent could only assert this right of action under the common law when a personal injury action on behalf of the minor was pending,” Hall wrote.
Although she found the defendant’s interpretation of the statute “supportable,” the judge said the statute as a whole did “not abridge the long-recognized common law right of the parent.”
She pointed to Keene v. Yates, a 2000 case from Abingdon federal court, saying that the Virginia statute did not require a personal injury action by the infant “as a precondition to the parents’ right of action for medical expenses.”
Separate suit deadlines
Hall also pointed out possible complications from the fact that a parent’s claim for medical expenses and an injured child’s personal injury claim are governed by different statutes of limitations: The parent has five years to sue, while a child injured before age 8 may sue any time before the child’s 10th birthday.
Hall also denied the defendants’ alternative motion to join the child and his father in the mother’s action. The defense argued the child should be joined because Section (B) of the statute provides that both the parent’s and child’s actions are governed by a single medical malpractice cap under Va. Code § 8.01-581.15, and the child’s claim for damages could be exhausted by the mother’s claim for expenses.
The judge said the court could not just assume either the father or child wished to sue, and then order that they be joined. As well, the father’s claim for medical expenses likely was time-barred under Va. Code § 8.01-243(B).
Lawyers defending a parent’s separate action for medical expenses may want to take another look at the Keene case, relied on by the Norfolk Circuit Court, according to Dillman.
Dillman said the defense “respectfully disagreed” that Keene was the final word. That decision is distinguishable, he said, as that case involved a pending companion case for wrongful death.